Litigation: Protecting witness statements from discovery

In-house lawyers often interview or direct others to interview witnesses to an event that may result in litigation involving their company. The interviewees may include company employees, persons, such as consultants, with a contractual relationship with the company, or completely independent witnesses. Counsel inevitably will face the decision whether to memorialize the interview and, if so, whether to do so by having the witness sign a statement, video- or audio-recording the statement, or summarizing the witness’s comments in a memorandum.

The questions become whether documented witness statements are discoverable and how in-house attorneys should handle these statements to maximize the potential for protection. And these questions implicate several issues, including the corporate attorney-client privilege, the work-product doctrine, and federal and state-law distinctions.

Privilege vs. Work Product

Many lawyers confuse or conflate the corporate attorney-client privilege and the work-product doctrine. Generally, the corporate attorney-client privilege protects from compelled disclosure communications between employees and in-house or outside counsel. Once established, the privilege is absolute and will not give way despite an adversary’s level of need. The privilege is a substantive issue governed by federal or state substantive law.

The work-product doctrine is not an evidentiary privilege, but rather a preclusion doctrine that prevents an opposing party from discovering materials created by counsel in preparation for litigation. The doctrine’s purpose is to prevent a party from reaping the benefits of his adversary counsel’s preparation and strategic thinking. It protects an attorney’s documents prepared in anticipation of litigation. The key phrase is “in anticipation of litigation,” and courts generally take a “because of” approach, meaning, in light of the nature of the document and the factual circumstances surrounding it, whether the document can fairly be said to have been prepared or obtained because of the prospect of litigation.

The work-product protection is a procedural doctrine incorporated into federal and state rules of civil procedure. These rules generally do not provide absolute protection, permitting discovery if the party shows that it has substantial need for the materials and cannot obtain similar information without undue hardship.

Federal and state civil procedure rules may differ regarding work-product protection of witness statements. Many state civil procedure rules do not specifically address whether witness statement receive special work product protection. Federal Rule of Civil Procedure 26(b)(3)(C), by contrast, expressly permits any person, including a party or an independent witness, to obtain his own witness statement without meeting the “substantial need” burden. But the federal rule does not permit a party to obtain another witness’s statement without meeting the “substantial need” and “undue hardship” prerequisites.

Corporate Employees

Witness statements resulting from in-house counsel’s interviews with corporate employees may gain protection from compelled discovery through the corporate attorney–client privilege and the work-product doctrine. If the employee prepares the statement at the direction of counsel, for the purpose of allowing in-house counsel to provide legal advice to the company, and the statement is and remains confidential, then the privilege should render the statement non-discoverable. Similarly, an in-house counsel’s memorandum summarizing a witness’s interview statements should receive protection by the attorney-client privilege and the work-product doctrine because the summary memorandum likely contains the in-house lawyer’s mental impressions. In other words, the attorney’s structure of the memorandum, including which information is emphasized or de-emphasized, reveals the attorney’s work product that is worthy of protection.

Independent Witnesses

Statements of independent witnesses—those with no employee or other relationship with the company—will not receive attorney-client privilege protection because, simply, these statements fall outside the attorney-client relationship. In-house counsel must therefore rely upon the work-product doctrine to protect these statements from discovery, and in-house counsel must carefully plan how to handle the witness interview and whether to obtain statements if she wants to protect the circumstances and content of witness statements and interviews.

Counsel may delegate witness interview to others, such as risk managers, and still claim work-product protection, but only if counsel directly instructs the other person to conduct the interview. Witness statements obtained without counsel direction will not receive work product protection. So, for example, routine witness statements taken by insurance adjusters or investigators who were not engaged and instructed by legal counsel will likely not receive protection.

In-house counsel must decide whether to memorialize an independent witness interview and, if so, in what form. Because the work-product doctrine protects an attorney’s mental impressions and strategic thinking, some courts find that verbatim witness statements fall outside the doctrine’s protection. Signed statements, such affidavits or declarations, audio or video recordings, and even attorney memos or notes that attempt a verbatim witness statement are less likely to receive work-product protection because the opposing party has a stronger “substantial need” argument. By contrast, an in-house lawyer’s memorandum summarizing or paraphrasing a witness statement is more likely to contain the lawyer’s mental impressions and receive work-product protection.

Practice Tips

Not all witness interviews deserve documentation of the witness’s statement. Counsel should be selective in determining whether a statement is necessary rather than taking a statement as an automatic response.

If counsel delegates a witness interview to an investigator, risk manager, or other person, she should ensure that there is a communication chain showing that the interviews were conducted at the direction of counsel.

Counsel should not obtain witness statements, particularly verbatim or recorded statements, when counsel’s notes will suffice. To gain work-product protection, it is preferable for witness interviews to be drafted as summaries of witness statements that do not attempt to recite any statements verbatim.

When obtaining a statement from a corporate employee, counsel should ensure that the document contains a heading or other designation that the statement is a confidential communication made at the attorney’s request for purposes of rendering legal advice and in anticipation of litigation.

Witness statements from independent witnesses should similarly contain a heading or other designation that the statement is confidential and taken in anticipation of litigation.